Citation Nr: 0314781
Decision Date: 07/03/03 Archive Date: 07/10/03
DOCKET NO. 96-06 431 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
The propriety of the initial evaluation for post-concussion
syndrome, evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Pitts, Associate Counsel
INTRODUCTION
The veteran had service with the United States Army Reserves
(Army Reserves). This service included verified active duty
for training (ACDUTRA) from August 23, 1985 to September 7,
1985 and other verified active service from June 1980 to
October 1980. Neither additional active service that may
have been performed by the appellant nor the dates of his
enlistment and discharge from the Army Reserves have been
verified.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a February 1995 rating decision of the
Pittsburgh, Pennsylvania Department of Veterans Affairs
Regional Office (RO).
A personal hearing was held before a hearing officer at the
RO in June 1996.
In March 2000, the Board remanded the claim for purposes of
development.
REMAND
The claim must be remanded to ensure that it is developed and
adjudicated in compliance with the Veterans Claims Assistance
Act of 2000 (VCAA) and its implementing regulations. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2002).
To that end, the RO must provide the veteran and his
representative with the notice concerning information and
evidence that could substantiate the claim that is required
by section 5103 of the VCAA and described in section 3.159(b)
of the implementing regulation. See 38 U.S.C.A. § 5103
(2002); 38 C.F.R. § 3.159(b) (2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The notice must indicate
which evidence the veteran is finally responsible for
obtaining and which evidence VA will attempt to obtain on his
behalf. Id.
The notice to be furnished under section 5103 of the VCAA in
this case should include a discussion of the evidence that
could support the assignment of a higher initial rating of
the veteran's post-concussion syndrome under all potentially
relevant provisions of the rating schedule. See Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991). These include, but
are not necessarily limited to, Diagnostic Codes 8045
(concerning brain disease due to head trauma) and 9304
(concerning dementia due to trauma).
The Board notes that while this appeal has been pending, the
criteria for ratings under Diagnostic Code 9304 were revised
as of an effective date of November 7, 1996. See 61 Fed.
Reg. 52,700 (Oct. 8, 1996). If the new criteria may prove
more favorable to any claim, they must be applied in that
instance. Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991). However, the new criteria cannot be applied to rate
the disability as it was manifested before their effective
date. See 38 U.S.C.A. § 5110(g) (West 2002). Therefore, if
the revised criteria are more favorable to the claim than are
the former, the RO should consider assigning a "staged"
disability rating employing the revised criteria to the
extent permissible. See Fenderson v. West, 12 Vet. App. 119,
126 (1999). A staged rating may be assigned when, as here,
the evaluation is incident to a grant of service connection.
Id. The 10 percent evaluation for post-concussion syndrome
in this case was established with a grant of service
connection from May 23, 1994.
Purely neurological disabilities are to be rated under the
applicable diagnostic code. Purely subjective complaints,
such as headache, dizziness, or insomnia, that are recognized
as symptomatic of brain trauma are rated at 10 percent and no
more under Diagnostic Code 9304 and may not be combined with
any other rating for a disability due to brain trauma. A
rating in excess of 10 percent for brain disease due to
trauma under Diagnostic Code 9304 may not be assigned in the
absence of a diagnosis of multi-infarct dementia associated
with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045
(2002).
The record now standing on appeal does not document a
diagnosis of multi-infarct dementia or show that the veteran
has neurological disabilities symptomatic of brain trauma
other than purely subjective complaints.
However, during a VA neurological examination performed in
April 2002 in accordance with the directives of the Board's
March 2000 Remand, the examiner recognized the possibility
that the veteran had certain objective neurological
disabilities as a result of head trauma. The examiner
scheduled the veteran for an MRI of the head and an EEG
screening for seizures, but the veteran did not report for
these procedures. In an addendum to the April 2002
examination report, the examiner observed that in the absence
of the results of those studies, he would have to conclude
that the veteran was disabled mainly from a psychiatric
condition (one not service connected). It is clear from the
existing record that without the MRI and EEG studies
contemplated by the neurological examiner in April 2002,
evidence that could support a rating above 10 percent for
post-concussion syndrome will be lacking in this case.
Among the duties VA has under the VCAA is to secure a medical
examination or opinion if such is necessary to decide any
claim for benefits. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R.
§ 3.159(c)(4). The Board is of the opinion that the veteran
should be given another opportunity to report for a
supplemental examination that could yield evidence of greater
disability than what is reflected by the current rating of
his post-concussion syndrome.
Accordingly, this case is REMANDED for the following actions
1. The RO must provide the veteran and
his representative with notice concerning
the kind of evidence that is required to
substantiate his claim. The notice must
satisfy section 5103 of the VCAA and
section 3.159(b) of the implementing
regulation. See 38 U.S.C.A. § 5103 (West
2002); 38 C.F.R. § 3.159(b) (2002); see
also Quartuccio v. Principi. Thus, the
notice must include a discussion of any
information and any medical or lay
evidence not currently of record that is
necessary to
substantiate each of the claims. In so
doing, the notice must refer to proof
required by specific rating provisions
that may be relevant to the claim, to
include those discussed above. See
38 C.F.R. § 4.124a, Diagnostic Code 8045,
§ 4.132 (2002), Diagnostic Code 9304
(1996), § 4.130, Diagnostic Code 9304
(2002). The notice must indicate which
evidence the veteran is finally
responsible for obtaining and which
evidence VA will attempt to obtain on his
behalf and must meet the other
requirements for such notices set forth in
38 U.S.C.A. § 5103 and 38 C.F.R.
§ 3.159(b).
The veteran and his representative must
be given appropriate time to respond.
2. Then, the RO should schedule the
veteran for a neurological examination.
The examination should be conducted by
the examiner who performed the
neurological examination of April 2002,
if he is available. Otherwise, it should
be performed by a VA neurologist. The
purpose of the examination is to
determine whether the veteran currently
has objective neurological residuals (as
contrasted with purely subjective
complaints, such as headache, dizziness,
or insomnia, that are recognized as
symptomatic of brain trauma) of the head
trauma that he sustained while on active
duty in August 1985. All tests and
studies that the examiner thinks
necessary to resolve this question fully
should be performed. If a brain MRI and
an EEG are not performed, the examination
report should explain why, in view of the
conclusion expressed in the April 2002
examination report that such studies were
needed. The examiner should identify
each objective neurological residual
exhibited by the veteran and of each,
state whether it is at least as likely as
not (that is, 50 percent or better) that
it has resulted from the service-related
head trauma. The claims folder should be
made available to the examiner for review
of pertinent documents therein.
3. After the development requested above
has been completed, the RO should
readjudicate the claim. If the claim is
not granted in full, the veteran and his
representative should be provided a
supplemental statement of the case.
38 C.F.R. § 19.31 (2002). This document
should include notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations. The
veteran and his representative should be
allowed appropriate time to respond.
Then, if appellate review is required, the case should be
returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).